Kern Law, APC has defended clients against marijuana charges since 2004. HS 11326.1 legalized marijuana in California under certain circumstance. Hower, HS11362.3 imposes limitations:
- Cannabis may not be smoked or ingested in any public place unless authorized by the local jurisdiction.
- Cannabis or cannabis products may not be smoked in a location where smoking tobacco is prohibited.
- Smoking cannabis or cannabis products within 1,000 feet of a school, day care center, or youth center where children are present is a violation. Private residences or places authorized by the local jurisdiction are exempt if smoking is not detectable by others on the grounds of the school, day care center, or youth center while children are present.
- Possessing an open container or package of cannabis or cannabis products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation is a violation. If the driver, the open container must be on the driver’s person.
- Possessing, smoking, or ingesting cannabis or cannabis products in or upon the grounds of a school, day care center, or youth center while children are present is a violation. 18 years of age or older is a misdemeanor 11357(c).
- Manufacturing concentrated cannabis using a volatile solvent – butane, propane, gasoline, etc. – is a violation. This violation is a felony: 11363.3(a).
- Smoking or ingesting cannabis or cannabis products while driving, operating a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation is a violation.
- Smoking or ingesting cannabis or cannabis products while riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation is a violation for the passenger.
The law bars driving with an “open package of cannabis.” A baggie that knotted and closed at the top is not “open.” Just because the baggie can be opened does not mean that it is open. The odor of marijuana alone no longer provides an inference that a car contains contraband. That is because people over the age of 21 can now lawfully possess and transport up to 28.5 grams of marijuana.
California Courts may attach minimal significance to the presence of a legal amount of marijuana when someone is driving. Therefore, if police smell burnt marijuana when making a legal stop, it does not necessarily justify a further investigation. Courts have held that the “the mere presence of a lawful amount of marijuana is not probable cause to search for more.” For example, an unsealed bag of marijuana on the passenger may not establish probable cause to search the passenger’s purse. Therefore, if police continue their investigation, the search and seizure of that evidence may be unlawful and therefore not admissible in court.
Marijuana laws are complex and require an experienced criminal defense attorney. If you have been arrested or face a marijuana charge, contact my office today. We provide a free, confidential consultation.
THC, or delta -9-tetrahydrocannabinol, is the primary psychoactive ingredient found in marijuana. The non-psychoactive ingredient in marijuana is cannabidiol or CBD. Some states impose restrictions on the amount of THC a driver can have in their bloodstream while driving, California does not.
To prove that someone is guilty of Marijuana DUI, the prosecutor must establish the following under Vehicle Code Section 23152(f):
- A person drove a vehicle; and
- The person was under the influence of any drug, including cannabis; and
- The person’s mental or physical abilities are so impaired by such drugs that they are unable to operate a motor vehicle with the caution of a sober person, using ordinary care, under similar circumstances.
Evidence Needed for a Conviction:
- A chemical test can be used but experts disagree on how much marijuana is too much under VC 23152(f). Additionally, chemical tests alone are typically insufficient to establish a conviction under VC 23152(f)
- The prosecutor can charge and convict without a chemical test. For example, the prosecutor can rely on how Field Sobriety Tests (FSTs) were performed; statements made by the driver to the officer, the close proximity of drug paraphernalia, the driving pattern, such as weaving, speed, and not obeying traffic laws. Officers will also rely on physical symptoms of marijuana use such as dilated pupils, the smell of marijuana, red eyes, slow reaction times, etc.
If you have been charged with Marijuana DUI, VC 23152(f), call Kern Law, APC, today. We will provide free consultation and quality representation.